Must-carry Won’t-Happen: Newbie FCC Member Says “No” to Martin

FCC Chairman Martin’s push to impose “multicast” must-carry rules on cable providers looked like a done deal only a few days ago. Martin had made the the new mandate a priority, and with two new Republican members of the commission sworn in, its looked like Martin would certainly be able to get a majority to support him. He had even scheduled a vote for Wednesday, usually a sure sign that the votes were in the bag.

As it turned out, however, the bag was empty. The reason: Robert McDowell, who joined the commission only three weeks ago, said “no.” According to National Journal, sources said that McDowell “sees much benefit from the cable industry voluntarily agreeing to carry broadcasters’ multicasts and prefers a private sector solution.” Moreover, he was said to be unsure of the legality of the proposed regulation. Since the two Democrats apparently also opposed the move, that left Martin without a majority.

Hooray for the new guy. Forcing cable companies to carry multiple TV signals from each broadcaster over their systems is a bad idea. First, consumers would be worse off, since these channels would displace other channels consumers presumably prefer. (Note that cable firms actually pay broadcasters for the right to carry channels that are popular. By definition, we are talking about the unpopular ones here).

Moreover, the rules would violate the constitution. By actual count, multi-cast must-carry likely violates two amendments–the fifth amendment (taking of property) and the first (free speech). Do the math. That’s 20 percent of the bill of rights. Pretty good for one regulation. They might as well add in something about quartering troops and go for a trifecta.

Commissioner McDowell, you were right to block this. Welcome to the FCC, by the way. Glad to have you aboard.

James Gattuso / James Gattuso is a Senior Research Fellow in Regulatory Policy in the Roe Institute for Economic Policy Studies at The Heritage Foundation. Gattuso also leads the Enterprise and Free Markets Initiative at Heritage, with responsiblity for a range of regulatory and market issues. Prior to joining Heritage, he served as Vice President for Policy at the Competitive Enterprise Institute and also as Vice President for Policy Development with Citizens for a Sound Economy (CSE). From 1990 to 1993, he was Deputy Chief of the Office of Plans and Policy at the Federal Communications Commission. From May 1991 to June 1992, he was detailed from the FCC to the office of Vice President Dan Quayle, where he served as Associate Director of the President's Council on Competitiveness. He lives in Alexandria, Virginia with his wife Dana, 8 year-old son, Peter (whom he relies upon to operate his VCR), and his four year-old daughter Lindsey (who does the DVD player.) He has no known hobbies, but is not nearly as boring as he seems.